Wednesday, May 25, 2016

Under the EB-5 Immigrant Investor program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card if they make a $1 million investment in a commercial enterprise in the United States. If the investment is in a trouble economic area, the investment threshold is reduced to $500,000.

The investment can occur in a single business, or it can be pooled with others as part of a USCIS-sanctioned "Regional Center" program. The majority of EB-5 visas are issued in connection with a Regional Center investment.

Traditionally EB-5 Regional Centers comprised of large-scale infrastructure projects, often in rural or low-income urban areas. Such projects have included shopping malls, ski resorts, and condo complexes. The largest EB-5 regional center, for a Vermont ski resort, has recently been taken to task by the Securities and Exchange Commission for fraud.

For the first time ever, a sports stadium will be built using the EB-5 Regional Center mechanism:

Mr. da Silva, the majority owner of Orlando City of Major League Soccer, is asking investors from Brazil, China and elsewhere to pay $500,000 each for a stake in the stadium he is building near downtown Orlando. In return, the foreign investors receive annual dividends, two season tickets and something even more valuable: a green card that allows them, their spouses and sometimes even their children to live and work in the United States.

...

Mr. da Silva, though, is building a $156 million stadium, not a high-rise building or a shopping mall, and he is marketing to foreigners not because lending is tight, but because lawmakers in Florida would not provide subsidies for the stadium in the Parramore neighborhood of Orlando.

Traditionally sports stadiums have been financed through public-private partnerships that often fail to produce the promised revenue for government funders. It remains to be seen whether Orlando City's EB-5 investors will enjoy any profits from their investments.

Wednesday, September 23, 2015

While sports like soccer (football), basketball and baseball are replete with foreign players, American football features relatively few foreign national players. However, the emerging trend is for increased foreign participation in American football. The case of New Zealander Paul Lasike presents an interesting example of this trend. Lasike was recruited from New Zealand as a future All-American rugby player at Brigham Young Univeristy in Utah. His athletic prowess caught the attention of BYU football coaches, who convinced him to switch to football for his remaining 3 years of college. Lasike subsequently enjoyed a successful career in college football and was named to the College Sports Madness All-Independent Third Team his senior year.

After his graduation, the Arizona Cardinals initially picked up Lasike as a free agent full-back, and employed him on the basis of a P-1A visa. This season, he has been signed by the Chicago Bears as a member of the practice squad. Unfortunately, the trade has run into visa trouble:

It’s one thing to have a transaction held up by the league office.

But for the Bears, the State Department is keeping them from filling their practice squad at the moment.

Apparently, the Bears may not have been aware of the rule that an NFL team acquiring a player from another team typically needs to file a new P-1A petition with USCIS to reflect the player transfer. The rule is that a player in P-1A visa status can play for a new team based on the existing P-1A for up to 30 days. During that time, the new team must file a P-1A transfer. While the transfer petition is pending, the player can play for the new team for up to 240 days beyond the earlier work authorization.

Tuesday, April 28, 2015

The May 2, 2015 fight between Manny Pacquiao and Floyd Mayweather has captured the imagination of the general public for a number of reasons. Those reasons include the contrast in personality and background for two of the best boxers in recent memory.

While much of the focus will be on this main event, the behind-the-scene wranglings for the fight's undercard reveal the negative impact that visa processing can have on sports events.

Managers for the fight had reportedly been attempting to bring four top-level Filipino boxers to serve as the undercard (presumably to play up the U.S. v. Philippines angle). The four fighters are IBF World Youth super flyweight champion Aston Palicte, WBO Asia Pacific bantamweight champion Marlon Tapales, super flyweight Drian “Gintong Kamao” Francisco, and IBF Asia Pacific super lightweight champion Adonis Cabalquinto.

The four boxers were reported to have an interview at the US Embassy in Manila on Tuesday [April 21, 2015], with the hopes of getting the visa in time for the fight.

At this time, the undercard has been finalized and none of the Filipino fighters are listed, which raises the strong likelihood that visa processing delays have precluded their inclusion in the marquee event. Boxingscene.com reports:

[T]hey did not get their P1 visas on time even though the visa process was expedited by our lawyers, so we took them off the card as the safety of the fighters are a major concern and there was not enough time for them to get acclimatized and travel.

Despite the availability of premium processing and the ostensibly relaxed standard for P1 visa athletes, this incident highlights the difficulties faced by athletes and promoters in navigating U.S. immigration law.

Friday, December 26, 2014

President Obama recently announced a complete overhaul of the country's long-standing, virtual sequester of Cuba. This has been unfortunate for many reasons, including the fact that many of the world's top boxers, volleyball players and baseball players hail from the island nation. For instance, defecting Cuban baseball players Yoenis Cespedes, Yasiel Puig, Jose Abreu and Rusney Castillo have all signed on for successful multi-million dollar contracts with MLB teams.

Unfortunately, because of travel restrictions on Cuban players, many who find their way to the U.S. are forced to utilize unscrupulous and often dangerous human smugglers to facilitate their transfer.

The uncomfortable truth is that many Cuban baseball players who defect
to the U.S. must endure extreme danger in order to do so and often rely
on human trafficking rings to smuggle them off the island. As part of President Obama's announced policy change, the U.S. will reportedly work with the Cuban government on human trafficking issues. In the short term this could make it more difficult for Cuban players to defect.

Over the long-term, however, increasing numbers of Cuban players could make their way to compete for U.S. teams. That would require elimination of trade restrictions between the two countries. The United States has previously relaxed trade restrictions with Iran on a one-time basis, to allow FIBA Asia star Hamed Haddadi to play for the Memphis Grizzlies. Presumably the recent shift in American foreign policy towards Cuba could facilitate similar relaxations with respect to Cuban players.

Wednesday, February 26, 2014

Japanese pitcher Masahiro Tanaka has been in the limelight of late. The star right-hander was just recently signed by the New York Yankees for a mammoth seven-year, $155 million contract. At only 25 years old, he is already expected to be one of the best pitchers in the game of baseball.

The Yankees filed a petition for Tanaka's P-1 with the USCIS Vermont Service Center, and wanted faster-than-normal approval of his case so that the pitcher could make it to Spring Training on time. One interesting tidbit relating to his P-1 processing appears in an article from the NY Daily News.

[The Yankees] called New York Senator Chuck Schumer to see if Sen. Schumer could help make sure the paperwork was done properly.

"My office works tirelessly to help constituents every single day, but it's not often you get a call from a constituent like the New York Yankees," Schumer said. "You see, the Yankees called me a couple of days ago to say they were worried about Masahiro Tanaka getting to spring training on time due to the length of time it can take for foreign players to get a visa.

"Foreign baseball players apply for something called a P-visa and the whole process can take up to a month; but with pitchers and catchers reporting on February 14th, it was very possible he wasn't going to make it. So I made sure we had someone go to the mailroom at USCIS (United States Citizenship and Immigration Services), pull his application and get it processed quickly - something I have done in the past for the Mets as well, when they had a similar issue with Jose Reyes."

While they can always pass special legislation granting particular aliens some immigration benefit, members of Congress cannot require that the USCIS or Department of State approve a particular applicant's case. They can, however, inveigle these administrative agencies to expedite certain cases that are under process.

For the normal person, expedites are typically only considered for humanitarian or pressing medical reasons. Apparently, expedites can also be done to assist a professional baseball player make it to spring training on time.

One wonders if such privileged treatment of celebrities calls into question the Constitution's 5th amendment guarantee of due process for all under federal law.

Friday, January 10, 2014

The five year P-1A visa is reserved for "internationally recognized athletes." One traditionally considers "athlete" to mean those engaged in physical competitions or sporting events. However, the definition of that terms seems to be expanding to encompass professional video game players.

Many will be surprised to learn that professional gaming has an intense following, particularly overseas.

The move could bring more professional gamers to the U.S. and grow an
already booming industry. This October, the final match for the game
League of Legends almost packed the Staples Center, home of the Los Angeles Lakers, with more than 13,000 people.

. . . .

At live matches, Kim would play against his opponent inside a soundproof
glass booth. Thousands of spectators watch these tournaments in person,
along with professional commentators narrating for millions of online
viewers.

Prize money can be very lucarative as well, as the combined prize money for the three StarCraft II world championship series next year is set at $1.6 million.

In our earlier post we questioned whether the League of Legends P-1 was a mere anomaly, or a marked shift in USCIS's interpretation of the visa. With this latest development, it seems clear that the agency now considers gaming to qualify as an athletic event for P visa purposes.

Monday, October 21, 2013

A recent story in the Newark Star Ledger follows the visa travails of Sudanese basketball player Mac Koshwal. The story touches on the mental suffering that even top-level athletes face in finding a way to stay and work in the United States. Koshwal is fighting for a roster spot on the NBA's Philadelphia 76ers or the NBDL's Delaware 87ers. His challenge to stay and work in the country is particularly acute because of how few professional basketball jobs exist in the US.

Of course, in some ways his story is no different from other employment-based nonimmigrants (like H-1B professionals or L-1 intercompany transferees) whose right to stay in the United States is also tied to ongoing employment. On the other hand, a computer professional with average skills in the industry could rather easily find an employer willing to sponsor his/her H-1B visa. In contrast, being NBA-caliber, Koshwal is clearly in the top 1% among basketball players in the country. Even so, if he fails to make an NBA or NBDL team, he would no longer have eligibility for an O or P visa, and would most likely have no basis to stay in the USA.

The article does make one puzzling claim: that Koshwal could not play in foreign countries.

Koshwal said he got help from the NBA in his quest to obtain a work
visa, something that he finally received three months ago after a
two-year battle. According to Koshwal, however, that visa does not apply
to other countries, however. Meaning that unlike players like Blue,
Wyatt and Thompson who could go potentially go overseas should things
not work out in Philadelphia, Koshwal said he does not have that option.

Each country has its own visa procedures, and the inability to secure a US work visa does not preclude acquiring a work visa in another country - say Spain or Greece - which also features top-level basketball leagues that could employ Koshwal.

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About Athlete's Visa

This blog is administered and maintained by the Law Offices of Kamlesh Tewary. Our firm has been committed to the provision of exceptional legal services since 1990. We serve clients nationwide on matters relating to immigration law.